Partition Actions in New York: How Do You Split Up A House?

Not everyone in New York knows what a Partition Action is. If you own real property, though, it’s probably a good idea to learn.

It is not your everyday slip and fall, automobile accident, or even breach of contract case. Those are the things most people have heard of and the things many trial lawyers have tried. A Partition Action, though, is different. Though it’s cloaked in legal terms, it’s really about how to split up real property between two or more owners in the fairest way possible. That is why, most often, it involves selling the property and splitting the proceeds equitably.

The normal ingredients for a Partition Action are:

• A piece of real property; it could have a house but it doesn’t have to.
• The real property has to be owned by more than one person. Think of an investment property: either an existing house that you want to rent out or that you want to flip, or fix up and sell for a profit; or even a vacant piece of land which you want to develop.
• One of the owners has to want to sell. It could be for any of a number of reasons: maybe she’s tired of being a landlord; maybe she wants to get her money out of the property and cash out; or maybe her co-owner just doesn’t get along with her anymore.

Who can obtain a partition of real property is governed by N.Y. Real Prop. Acts. Law §901, which provides, in relevant part:

1. A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners.

2. A person holding a future estate as defined in sections forty, forty-a or forty-b of the real property law or a reversion as joint tenant or tenant in common may maintain an action for the partition of the real property to which it attaches, according to his respective share, subject to the interest of the person holding the particular estate, but no sale of the premises in such an action shall be made except with the consent in writing, to be acknowledged or proved and certified in like manner as a deed to be recorded, of the person owning and holding such particular estate. If partition or sale cannot be made without great prejudice to the owners, the complaint shall be dismissed; dismissal shall not affect the right of any party to bring a new action after the determination of such particular estate.

3. A person entitled as a joint tenant or a tenant in common by reason of his being an heir of a person who died holding and in possession of real property, may maintain an action for partition, whether he is in or out of possession, notwithstanding an apparent devise to another by the decedent, and possession under such a devise. The plaintiff shall establish that the apparent devise is void.

4. In the event the estate of a decedent is the owner of an estate in common in real property, the executor or administrator may bring a partition action or intervene in a pending partition action on behalf of the estate if, upon application duly made, the surrogate approve

The test for a partition of real property by a joint tenant or tenant in common, was set out by the Second Department in Arata v. Behling, 57 A.D.3d 925, 926, 870 N.Y.S.2d 450 (2nd Dept. 2008):

“A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners” (RPAPL 901[1] ). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties (see **451 Graffeo v. Paciello, 46 A.D.3d 613, 614, 848 N.Y.S.2d 264; Ripp v. Ripp, 38 A.D.2d 65, 68-69, 327 N.Y.S.2d 465).

A joint tenant or tenant in common establishes his prima facie entitlement to partition by demonstrating his ownership and right to possession. The only issue then left is whether the equities favor the defendant’s refusal to partition the property. See Arata v. Behling, supra, 57 A.D.3d 925, 926, 870 N.Y.S.2d 450 (2nd Dept. 2008); James v. James, 52 A.D.3d 474, 859 N.Y.S.2d 479, 480 (2nd Dept. 2008)[Plaintiff established his right to judgement as matter of law in partition action by establishing ownership through duly executed deed conveying interest in property as tenant in common.].

Of course, there’s much more to a partition action than just the brief introduction given here. That, however, is a topic for another day. For now, though, you can think of a Partition Action as a good way to solve a bad problem: how do you split up a house?

Go raibh maith agat.

Ray Grasing